Citation Nr: 0841083
Decision Date: 11/28/08 Archive Date: 12/03/08
DOCKET NO. 00-15 890 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Jackson,
Mississippi
THE ISSUES
1. Entitlement to service connection for a low back
disability to include as secondary to service-connected right
ankle disability.
2. Entitlement to service connection for a right hip
disability to include as secondary to service-connected right
ankle disability.
3. Entitlement to service connection for a left hip
disability to include as secondary to service-connected right
ankle disability.
4. Entitlement to a rating in excess of 20 percent for a
right ankle disability prior to September 1, 2004, other than
periods of assigned temporary total evaluation.
5. Entitlement to a rating in excess of 30 percent for
aright ankle disability from September 1, 2004, other than a
period of assigned temporary total evaluation.
6. Entitlement to a compensable rating for bilateral
sensorineural hearing loss prior to February 12, 2008.
7. Entitlement to a rating in excess of 10 percent for
bilateral sensorineural hearing loss from February 12, 2008.
8. Entitlement to a compensable rating for otitis externa.
REPRESENTATION
Appellant represented by: American Red Cross
WITNESSES AT HEARING ON APPEAL
Appellant, D.B., and K.B.
ATTORNEY FOR THE BOARD
C. Chaplin, Counsel
INTRODUCTION
The veteran served on active duty from July 1962 to July
1965.
This matter comes before the Board of Veterans' Appeals
(Board) from a June 2000 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Jackson,
Mississippi, that continued a 10 percent evaluation for a
right ankle disability and a noncompensable rating for
bilateral sensorineural hearing loss.
This matter also arises from a December 2004 rating decision
that denied service connection for a bilateral hip
disability, to include as secondary to the service-connected
right ankle disability, and a low back disability, to include
as secondary to the service-connected right ankle disability.
A December 2000 rating decision assigned a 20 percent rating
for the right ankle disability effective from May 2000 and
multiple periods of a temporary total rating. A February
2006 rating decision assigned a 30 percent rating for the
right ankle disability from September 2004. Also, an April
2008 rating decision assigned a 10 percent rating for
bilateral sensorineural hearing loss effective in February
2008. As those ratings are less than the maximum available
rating, the issues remain on appeal. AB v. Brown, 6 Vet.
App. 35 (1993).
The Board remanded the claim in June 2003 for further
development. The veteran presented testimony at a personal
hearing in July 2008 before the undersigned.
The issues of entitlement to service connection for a low
back disability and bilateral hip disability to include as
secondary to service-connected right ankle disability, and
for an increased rating for service-connected right ankle
disability and otitis externa are REMANDED to the RO via the
Appeals Management Center in Washington, D.C.
In addition, the Board notes that in April 2008, the veteran
submitted a claim for a temporary total rating from March 1,
2008, to April 30, 2008. He had already been granted a
temporary total rating from September 1, 2007, to February
29, 2008. He was sent a notice letter in June 2008. It does
not appear that claim has been adjudicated and will be
addressed by the Board in the remand section.
FINDINGS OF FACT
1. A June 2000 VA audiological examination report showed
pure tone thresholds in the four frequencies from 1000 to
4000 Hertz that averaged 34 decibels in the veteran's right
ear with speech recognition of 82 percent, corresponding to
Level III hearing using Table VI. Pure tone thresholds
averaged 45 decibels in the veteran's left ear with speech
recognition of 80 percent, corresponding to Level III hearing
using Table VI.
2. An April 2004 VA audiological examination report showed
pure tone thresholds in four frequencies from 1000 to 4000
Hertz that averaged 44 decibels in the veteran's right ear
with speech recognition of 94 percent, corresponding to Level
I hearing using Table VI. Pure tone thresholds averaged 58
decibels in the veteran's left ear with speech recognition of
94 percent, corresponding to Level II hearing using Table VI.
3. A March 2005 VA audiological examination report showed
pure tone thresholds in four frequencies from 1000 to 4000
Hertz that averaged 38 decibels in the veteran's right ear
with speech recognition of 90 percent, corresponding to Level
II hearing using Table VI. Pure tone thresholds averaged 58
decibels in the veteran's left ear with speech recognition of
90 percent, corresponding to Level III hearing using Table
VI.
4. An October 2006 VA audiological examination report
indicated that the pure tone threshold results were
considered reliable and valid but use of the word recognition
scores was not appropriate. The report showed pure tone
thresholds in four frequencies from 1000 to 4000 Hertz that
averaged 38 decibels in the veteran's right ear corresponding
to Level I hearing using Table VIA. Pure tone thresholds
averaged 60 decibels in the veteran's left ear corresponding
to Level IV hearing using Table VIA.
5. A February 2008 VA audiological examination report showed
pure tone thresholds in four frequencies from 1000 to 4000
Hertz that averaged 44 decibels in the veteran's right ear
with speech recognition of 90 percent, corresponding to Level
II hearing using Table VI. Pure tone thresholds averaged 64
decibels in the veteran's left ear with speech recognition of
70 percent, corresponding to Level V hearing using Table VI.
CONCLUSIONS OF LAW
1. The schedular criteria for a compensable rating prior to
February 12, 2008, for bilateral sensorineural hearing loss
have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107
(West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.159, 4.85,
4.86, Diagnostic Code 6100 (2008).
2. The schedular criteria for a rating in excess of 10
percent from February 12, 2008, for bilateral sensorineural
hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5103,
5103A, 5107 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102,
3.159, 4.85, 4.86; Diagnostic Code 6100 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Upon receipt of a complete or substantially complete
application, VA must notify the claimant and any
representative of any information, medical evidence, or lay
evidence not previously provided to VA that is necessary to
substantiate the claim. This notice requires VA to indicate
which portion of that information and evidence is to be
provided by the claimant and which portion VA will attempt to
obtain on the claimant's behalf. See 38 U.S.C.A. §§ 5103,
5103A, 5107 (West 2002 & Supp. 2008); 38 C.F.R. § 3.159
(2007). The notice must: (1) inform the claimant about the
information and evidence not of record that is necessary to
substantiate the claim; (2) inform the claimant about the
information and evidence that VA will seek to provide; and
(3) inform the claimant about the information and evidence
the claimant is expected to provide. Pelegrini v. Principi,
18 Vet. App. 112 (2004); 73 FR 23,353 (Apr. 30, 2008).
Here, the RO sent correspondence in April 2003, June 2003,
March 2006, January 2008, and May 2008; rating decisions in
June 2000 and in December 2000; a statement of the case in
July 2000; and supplemental statements of the case in
December 2000, September 2001, March 2006, and April 2008.
These documents discussed specific evidence, the particular
legal requirements applicable to the claims, the evidence
considered, the pertinent laws and regulations, and the
reasons for the decisions. VA made all efforts to notify and
to assist the appellant with regard to the evidence obtained,
the evidence needed, the responsibilities of the parties in
obtaining the evidence, and the general notice of the need
for any evidence in the appellant's possession. The Board
finds that any defect with regard to the timing or content of
the notice to the appellant is harmless because of the
thorough and informative notices provided throughout the
adjudication and because the appellant had a meaningful
opportunity to participate effectively in the processing of
the claims with an adjudication of the claims by the RO
subsequent to receipt of the required notice. There has been
no prejudice to the appellant, and any defect in the timing
or content of the notices has not affected the fairness of
the adjudication. See Mayfield v. Nicholson, 19 Vet. App.
103 (2005), rev'd on other grounds, 444 F.3d 1328 (2006)
(specifically declining to address harmless error doctrine);
see also Dingess v. Nicholson, 19 Vet. App. 473 (2006).
Thus, VA has satisfied its duty to notify the appellant and
had satisfied that duty prior to the final adjudication in
June 2008.
In addition, all relevant, identified, and available evidence
has been obtained, and VA has notified the appellant of any
evidence that could not be obtained. The appellant has not
referred to any additional, unobtained, relevant, available
evidence. In June 2008 the veteran stated that he had no
other information or evidence to submit. VA has also
obtained a medical examination in relation to this claim.
Thus, the Board finds that VA has satisfied both the notice
and duty to assist provisions of the law.
The veteran contends that his bilateral hearing loss is worse
than the ratings assigned of zero percent prior to February
12, 2008, and 10 percent from February 12, 2008.
The veteran was afforded a VA audiological examination for
hearing loss in June 2000. The RO continued the
noncompensable rating in a June 2000 rating decision. The
veteran disagreed with the decision and during the appeal the
RO assigned a rating of 10 percent, effective February 12,
2008, the date of a VA examination. Thus, the veteran has on
appeal the issues of entitlement to a compensable rating
prior to February 12, 2008, and entitlement to a rating in
excess of 10 percent from February 12, 2008. Staged ratings
are appropriate for an increased rating claim when the
factual findings show distinct time periods where the
service- connected disability exhibits symptoms that would
warrant different ratings. Hart v. Mansfield, 21 Vet. App.
505 (2007).
Disability ratings are based upon schedular requirements that
reflect the average impairment of earning capacity occasioned
by the state of a disorder. 38 U.S.C.A. § 1155. Separate
rating codes identify the various disabilities. 38 C.F.R.
Part 4 (2008). In determining the level of impairment, the
disability must be considered in the context of the entire
recorded history, including service medical records.
38 C.F.R. § 4.2 (2008). An evaluation of the level of
disability present must also include consideration of the
functional impairment of the veteran's ability to engage in
ordinary activities, including employment. 38 C.F.R. § 4.10
(2008). Also, where there is a question as to which of two
ratings shall be applied, the higher rating will be assigned
if the disability picture more nearly approximates the
criteria required for that rating. Otherwise, the lower
rating will be assigned. 38 C.F.R. § 4.7 (2008).
Ratings of defective hearing range from noncompensable to 100
percent disabling based on organic impairment of hearing
acuity as demonstrated by the results of controlled speech
discrimination tests together with the average hearing
threshold levels as measured by pure tone audiometry tests in
the frequencies at 1000, 2000, 3000, and 4000 Hertz. 38
C.F.R. § 4.85, Table VI (2008). The assignment of disability
ratings for hearing impairment is derived at by a mechanical
application of the numeric designations assigned after
audiometric evaluations are rendered. Lendenmann v.
Principi, 3 Vet. App. 345 (1992). To evaluate the degree of
disability from a service-connected hearing loss, the rating
schedule provides for audiometric test results to be
translated into a numeric designation and establishes eleven
auditory acuity levels, from Level I, for essentially normal
acuity, through Level XI for profound deafness. 38 C.F.R. §§
4.85, 4.86, Diagnostic Code 6100 (2008). When the examiner
certifies that use of the speech discrimination test is not
appropriate, Table VIA will be used for hearing impairment
based only on the puretone threshold average. 38 C.F.R.
§ 4.85(c).
Exceptional patterns of hearing impairment are also
considered. When the pure tone threshold at each of the four
specified frequencies of 1000, 2000, 3000, and 4000 Hertz is
55 decibels or more, the rating specialist will determine the
Roman numeral designation for hearing impairment from either
Table VI or Table VIa, whichever results in the higher
numeral. Each ear will be evaluated separately. Also, when
the pure tone threshold is 30 decibels or less at 1000 Hertz
and 70 decibels or more at 2000 Hertz, the rating specialist
will determine the Roman numeral designation for hearing
impairment from either Table VI or Table VIa, whichever
results in the higher numeral. That numeral will then be
elevated to the next higher Roman numeral. Each ear will be
evaluated separately. 38 C.F.R. § 4.86 (2008).
At a VA audio examination in June 2000, pure tone thresholds,
in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
NA
25
25
30
55
LEFT
NA
30
35
50
65
The four frequency average was 34 decibels in the right ear
and 45 decibels in the left ear. Speech audiometry revealed
speech recognition ability of the Maryland CNC word list of
82 percent in the right ear and of 80 percent in the left
ear. The examiner diagnosed a bilateral sensorineural
hearing loss with slightly poorer hearing in his left ear.
Under Table VI, the June 2000 VA audiology evaluation
findings of an average of 34 and speech recognition of 82
percent reveal that the veteran exhibited a Level III hearing
loss in the right ear. The findings of an average of 45 and
speech recognition of 80 percent reveal that the veteran
exhibited a Level III hearing loss in the left ear. 38
C.F.R. § 4.85, Table VI.
Combining the June 2000 scores of Level III for the right ear
and Level III for the left ear in the manner set forth in
Table VII results in a noncompensable rating for bilateral
hearing loss under DC 6100. 38 C.F.R. § 4.85, Table VII
(2008).
Based on the June 2000 audiology evaluation findings, the
veteran is not entitled to consideration under 38 C.F.R. §
4.86(a) for either ear because the evidence does not show the
puretone threshold at each of the four specified frequencies
is 55 decibels or more. The veteran is also not entitled to
consideration under 38 C.F.R. § 4.86(b) for either ear
because the evidence does not show a pure tone threshold of
30 decibels or less at 1000 Hertz and 70 decibels or more at
2000 Hertz. Furthermore, the audiologist did not certify
that the use of the speech recognition test was
inappropriate.
At a VA audio examination in April 2004, pure tone
thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
NA
40
30
45
60
LEFT
NA
40
50
65
75
The four frequency average was 44 decibels in the right ear
and 58 decibels in the left ear. Speech audiometry revealed
speech recognition ability of the Maryland CNC word list of
94 percent in the right ear and of 94 percent in the left
ear. The examiner diagnosed mild to moderately severe
bilateral sensorineural hearing loss.
Under Table VI, the April 2004 VA audiology evaluation
findings of an average of 44 decibels in the veteran's right
ear with speech recognition of 94 percent correspond to Level
I hearing loss. The findings of an average of 58 decibels in
the veteran's left ear with speech recognition of 94 percent
correspond to Level II hearing using Table VI. 38 C.F.R. §
4.85, Table VI. Combining the April 2004 scores of Level I
for the right ear and Level II for the left ear in the manner
set forth in Table VII results in a noncompensable rating for
bilateral hearing loss under DC 6100. 38 C.F.R. § 4.85,
Table VII (2008).
Based on the April 2004 audiology evaluation findings, the
veteran is not entitled to consideration under 38 C.F.R. §
4.86(a) for either ear because the evidence does not show the
puretone threshold at each of the four specified frequencies
is 55 decibels or more. The veteran is also not entitled to
consideration under 38 C.F.R. § 4.86(b) for either ear
because the evidence does not show a pure tone threshold of
30 decibels or less at 1000 Hertz and 70 decibels or more at
2000 Hertz. Furthermore, the audiologist did not certify
that the use of the speech recognition test was
inappropriate.
At a VA audio examination in March 2005, pure tone
thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
NA
35
25
35
55
LEFT
NA
40
55
60
75
The four frequency average was 38 decibels in the right ear
and 58 decibels in the left ear. Speech audiometry revealed
speech recognition ability of the Maryland CNC word list of
90 percent in the right ear and of 90 percent in the left
ear. The examiner diagnosed mild to moderate sensorineural
hearing loss in the right ear and mild to severe
sensorineural hearing loss in the left ear.
Under Table VI, the March 2005 VA audiology evaluation
findings of an average of 38 decibels and speech recognition
of 90 percent reveal that the veteran exhibited a Level II
hearing loss in the right ear. The findings of an average of
58 decibels and speech recognition of 90 percent reveal that
the veteran exhibited a Level III hearing loss in the left
ear. 38 C.F.R. § 4.85, Table VI (2008).
Combining the March 2005 scores of Level II for the right ear
and Level III for the left ear in the manner set forth in
Table VII results in a noncompensable rating for bilateral
hearing loss under DC 6100. 38 C.F.R. § 4.85, Table VII
(2008).
Based on the March 2005 audiology evaluation findings, the
veteran is not entitled to consideration under 38 C.F.R. §
4.86(a) for either ear because the evidence does not show the
puretone threshold at each of the four specified frequencies
is 55 decibels or more. The veteran is also not entitled to
consideration under 38 C.F.R. § 4.86(b) for either ear
because the evidence does not show a pure tone threshold of
30 decibels or less at 1000 Hertz and 70 decibels or more at
2000 Hertz. Furthermore, the audiologist did not certify
that the use of the speech recognition test was
inappropriate.
At a VA audio examination in October 2006, pure tone
thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
NA
35
25
30
60
LEFT
NA
45
50
65
80
The four frequency average was 38 decibels in the right ear
and 60 decibels in the left ear. Speech audiometry revealed
speech recognition ability of the Maryland CNC word list of
78 percent in the right ear and of 70 percent in the left
ear. The examiner stated that the word recognition scores
should not be used for rating purposes because it was not
felt that the veteran was giving his best effort and the
scores were not comparable to previous scores obtained in
2005. The examiner stated that the pure-tone thresholds
might be used for rating purposes.
The examiner diagnosed mild sensorineural hearing loss in the
right ear for the frequencies of 1000 Hertz and 3000 Hertz
and moderately severe sensorineural hearing loss at 4000
Hertz. The veteran had a mild to severe sensorineural
hearing loss in his left ear. The examiner stated that the
results finally obtained were considered to have fair
reliability and validity; but that the word recognition
scores should not be used for rating purposes.
As the examiner indicated that use of the word recognition
scores was not appropriate, the hearing impairment will be
considered under Table VIA, based only on puretone threshold
average. The October 2006 VA audiology evaluation findings
of a puretone threshold average of 38 decibels reveal that
the veteran exhibited a Level I hearing loss in the right
ear. The findings of a puretone threshold average of 60
decibels reveal that the veteran exhibited a Level IV hearing
loss in the left ear. 38 C.F.R. § 4.85, Table VIA.
Combining the October 2006 scores of Level I for the right
ear and Level IV for the left ear in the manner set forth in
Table VII results in a noncompensable rating for bilateral
hearing loss under DC 6100. 38 C.F.R. § 4.85, Table VII
(2008).
Based on the October 2006 audiology evaluation findings, the
veteran is not entitled to consideration under 38 C.F.R. §
4.86(a) for either ear because the evidence does not show the
puretone threshold at each of the four specified frequencies
is 55 decibels or more. The veteran is also not entitled to
consideration under 38 C.F.R. § 4.86(b) for either ear
because the evidence does not show a pure tone threshold of
30 decibels or less at 1000 Hertz and 70 decibels or more at
2000 Hertz.
At a VA audio examination in February 2008, pure tone
thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
NA
35
35
35
70
LEFT
NA
45
55
70
85
The four frequency average was 44 decibels in the right ear
and 64 decibels in the left ear. Speech audiometry revealed
speech recognition ability of the Maryland CNC word list of
90 percent in the right ear and of 70 percent in the left
ear. The examiner diagnosed mild to moderately severe
sensorineural hearing loss in the right ear and moderate to
severe sensorineural hearing loss in the left ear. The
examiner stated that the results had good reliability and
validity for both pure tone thresholds and word recognition
scores.
Under Table VI, the February 2008 VA audiology evaluation
findings of an average of 44 decibels and speech recognition
of 90 percent reveal that the veteran exhibited a Level II
hearing loss in the right ear. The findings of an average of
64 decibels and speech recognition of 70 percent reveal that
the veteran exhibited a Level V hearing loss in the left ear.
38 C.F.R. § 4.85, Table VI.
Combining the February 2008 scores of Level II for the right
ear and Level V for the left ear in the manner set forth in
Table VII results in a 10 percent rating for bilateral
hearing loss under DC 6100. 38 C.F.R. § 4.85, Table VII
(2008).
Based on the February 2008 audiology evaluation findings, the
veteran is not entitled to consideration under 38 C.F.R. §
4.86(a) for either ear because the evidence does not show the
puretone threshold at each of the four specified frequencies
is 55 decibels or more. The veteran is also not entitled to
consideration under 38 C.F.R. § 4.86(b) for either ear
because the evidence does not show a pure tone threshold of
30 decibels or less at 1000 Hertz and 70 decibels or more at
2000 Hertz. Furthermore, the audiologist did not certify
that the use of the speech recognition test was
inappropriate.
The veteran testified in August 2008 that he used hearing
aids and had to watch people talk to him or either they had
to talk very loudly. His left ear was the poorer ear and he
could hear fairly decently with his right ear.
In deciding this matter, the Board has considered that
separate ratings can be assigned for separate periods of time
based upon the facts found. The evidence does not show a
bilateral hearing loss disability warranting a compensable
disability rating prior to February 12, 2008, or warranted a
rating in excess of 10 percent from February 12, 2008.
Accordingly, the Board concludes that the preponderance of
the evidence is against the claim for a compensable rating
prior to February 12, 2008; and a rating in excess of 10
percent from February 12, 2008, for the veteran's service-
connected bilateral hearing loss. Therefore, the claim must
be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1
Vet. App. 49 (1991).
ORDER
Entitlement to a compensable disability rating for service-
connected bilateral hearing loss prior to February 12, 2008
is denied.
Entitlement to a disability rating in excess of 10 percent
for service-connected bilateral hearing loss from February
12, 2008 is denied.
REMAND
Further development is needed prior to appellate review on
the issues of service connection for a bilateral hip
disability and low back disability to include as secondary to
service-connected right ankle disability, for an increased
rating for the service-connected right ankle disability
(other than the periods of a temporary total rating) and for
a compensable rating for otitis externa.
In October 2004 the veteran submitted a claim for service
connection for bilateral hip and lower back disabilities
secondary to his service-connected right ankle. A November
2004 outpatient treatment record shows a diagnosis of early
arthrosis of the hips and low back syndrome. The veteran
subsequently claimed that his hips and back were also hurting
at the time of the injury to his right ankle in service and
post service. The veteran also related that over the years
he had favored his service-connected right ankle disability
and this put weight and stress on his low back and hips.
The regulations provide that a disability which is
proximately due to or the result of a service-connected
disease or injury shall be service-connected. Also,
secondary service connection is permitted based on
aggravation. Compensation is payable for the degree of
aggravation of a non-service- connected disability caused by
a service-connected disability. 38 C.F.R. § 3.310 (2008);
Allen v. Brown, 7 Vet. App. 439 (1995). A determination of
service connection requires a finding of the existence of a
current disability and a determination of a relationship
between the disability and an injury or disease incurred in
service. Watson v. Brown, 4 Vet. App. 309 (1993).
Establishing service connection on a secondary basis
essentially requires evidence sufficient to show: (1) that a
current disability exists; and (2) that the current
disability was either caused or aggravated by a service-
connected disability. 38 C.F.R. § 3.303, 3.310 (2008).
VA outpatient treatment records in November 2004 show the
veteran complained of pain in his hips and low back which he
indicated was secondary to his service-connected right ankle
disability. A diagnosis of early arthrosis of both hips and
low back syndrome was entered. The veteran was afforded a VA
examination in October 2006 and a medical opinion was
provided. The RO sought clarification on the rationale for
the opinion. In July 2007 another medical opinion was
provided. Although those doctors have expressed opinions
regarding a relationship between the veteran's claimed
disabilities of bilateral hip and low back and service, or an
incident in service, or a service-connected right ankle
disability, those opinions do not address whether a
nonservice-connected disability of bilateral hip or low back
is aggravated by the service-connected right ankle
disability. Accordingly, an additional medical opinion is
necessary prior to adjudication. See Allen v. Brown, 7 Vet.
App. 439 (1995).
At the July 2008 Board hearing, the veteran testified that
his right ankle was worse since his last VA examination. He
testified that if he placed weight on his ankle he could feel
it crunch and it felt like an electrical current went through
it. As the veteran has expressed that his right ankle
disability is worse since the last VA examination, the Board
fins that another examination should be afforded the veteran.
38 C.F.R. § 3.159 (c) (2008). In addition, the veteran has a
pending claim for a temporary total rating from March 1,
2008, to April 30, 2008, for his service-connected right
ankle disability. The Board finds that the issue of the
veteran's entitlement to a temporary total rating under the
provisions of 38 C.F.R. § 4.30 is inextricably intertwined
with the issue concerning an increased rating for a right
ankle disability. Therefore, those issues must be
adjudicated together.
The veteran also testified in July 2008 that he used daily
ear drops to control otitis externa and prevent an infection.
He testified that he had a scaly left ear with discharge at
that time and over the years the condition had gotten worse
and worse. The Board finds that a current medical
examination is necessary prior to appellate review of the
issue of the appropriate rating of otitis externa. 38 C.F.R.
§ 3.159(c)(4) (2008).
Accordingly, the case is REMANDED for the following action:
1. Schedule a VA orthopedic
examination. The claims folder should
be reviewed and the report should
indicate that the review was performed.
The examiner should provide the
following opinions:
(a) Is it at least as likely as not
(50 percent or greater probability)
that any diagnosed disorders of the
hips or back are related to service,
an incident in service, or are due
to or the result of the veteran's
service-connected residuals of a
fracture of the right ankle?
(b) Is it at least as likely as not
(50 percent or greater probability)
that any diagnosed disorders of the
hips or back have been aggravated by
the veteran's service-connected
right ankle disability?
2. Schedule the veteran for an
orthopedic examination to determine the
severity of his service-connected right
ankle disability. The claims file must
be made reviewed by the examiner and
the review should be noted in the
examination report. The report of the
examination should be comprehensive and
include a detailed account of all
manifestations of the service-connected
right ankle disability. In particular,
the examiner must report any functional
limitation found and range of motion
expressed in degrees. The examiner
must address whether the veteran has
ankylosis of the right ankle and, if
so, the position of ankylosis, and
whether the veteran has any abduction,
adduction, inversion, or eversion
deformity. The examiner must also
address any neurologic abnormalities
related to the veteran's service-
connected right ankle disability. The
examiner must render specific findings
as to whether during the examination
there is objective evidence of pain on
motion, weakness, excess fatigability,
or incoordination associated with the
veteran's right ankle disability, and
whether any of those factors cause
additional loss of function. The
examiner should express such functional
loss in terms of additional degrees of
limitation of motion.
3. Schedule the veteran for a VA ear
examination to determine the severity
of the veteran's bilateral otitis
externa. For each ear, the examiner
should determine whether, and to what
extent, there is swelling, dry and
scaly or serous discharge, and itching
requiring frequent and prolonged
treatment.
4. Then, readjudicate the claims to
include, if not already adjudicated,
the claims for a temporary total rating
under 38 C.F.R. § 4.30 for the right
ankle disability. If any benefit
sought on appeal remains denied, issue
a supplemental statement of the case
and allow the appropriate time for
response. Thereafter, return the case
to the Board.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board or
the United States Court of Appeals for Veterans Claims for
additional development or other appropriate action must be
handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112
(West Supp. 2008).
______________________________________________
HARVEY P. ROBERTS
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs